Harkness v. State, 129 Ala. 71

Harkness v. State

129 Ala. 71 | Ala. | 1900

SHAKPE, J.

As to whether the defendant or the-deceased was the assailant in the encounter which resulted in the homicide, the evidence was conflicting. Testimony for the State tended to prove that the killing was done willfully and even without provocation.. Evidence adduced by the defendant tended to show that the deceased when he was shot had while threatening-to kill the defendant approached with an uplifted rail to within a few feet of him and that the defendant was then standing in a road, the exit from which was' partially obstructed by a fence, a gate and a pile of' plank. This conflict in evidence involved a question for the jury of the defendant’s right to shoot in self-defense. In such cases, previous threats of personal violence, recently made by the person killed, against and brought to the knowledge of hi-s slayer, may be shown-in evidence.—Dupree v. State, 33 Ala. 380; Powell v. State, 52 Ala. 1; Pritchett v. State, 22 Ala. 39.

In this case testimony was introduced to effect that a few days before killing the deceased said to the defendant: “I intend to kill you.” The court then excluded' evidence offered -by the defendant tending to prove that at the time he made' that threat the deceased' had am *78open knife in bis band, was walking rapidly toward .the defendant and was within a few feet of him. The writer and Justice Dowdell are of the opinion that this evidence was competent and its exclusion was error. The reason for admitting evidence of such previous threats is that they may reasonably have induced the belief on the part of the slayer that his assailant had determined to kill him or do him great bodily harm and consequently that there was a necessity to act - in self-defense. The reason applies to threatening conduct as well as to threatening words, for actions may be even more significant of an intention to do- violence than are mere words. It seems the established rule -which excludes particulars of a former difficulty when offered to show malice as actuating a defendant to commit .a. crime or as biasing a witness’ testimony ought not to be applied here.—See 2 Bish. Crim. Pro., § 610 and note 2; 3 Green. Ev., note 4 to § 116. In Rutledge v. State, 88 Ala. 85, and Jones v. State, 116 Ala. 468, references are made to this rule among the reasons given .for excluding testimony relating to previous acts of aggression by the deceased, but since neither of .these cases involved self-defense it seems they should not be taken as authorities on the present question. A majority of the court hold that those cases are here in point; that the inconvenience of trying the multiplication o>f issues that might have arisen -from allowing •evidence of the previous assault with a knife, outweighs the value of such evidence and justifies its exclusion. From that conclusion the writer and Justice Dowdell dissent.

What the defendant said to others about the circumstances of the first difficulty, and likewise his statements made after the killing to effect that deceased attacked him on that occasion with a rail, were no part of the res gestae of those occurrences and their admission would have violated the rule which prohibits a party to make evidence for himself by his mere -declarations.

In the part of the oral charge excepted to and in the giving and refusal of requested charges there is no *79reversible error. It is not clear what is meant by that part of charge “B” which, after stating freedom from fault as a condition necessary to establishing self-defense, asserts as a further condition that the defendant “must be disregardful of the consequences in. this respect of any wrongful act or words.” The subsequent parts of that charge were approved in Wilkins v. State, 98 Ala. 1. The first part including the clause quoted is as easily susceptible of a construction favoring the defendant as the prosecution. Its defect is only in a tendency to mislead, and that vice being one which might have been cured by an explanatory charge had it been requested, is not available to reverse the judgment.

Charges A and C correctly state the law with reference to the presumption of malice which the law raises from the use of a deadly weapon, and the effect of malice in making a homicide at least murder in the second degree, in which offense premeditation is not a necessary ingredient.—Wilkins v. State, 98 Ala. supra.

Of the charges requested by defendant charge 1 was argumentative, and charge 5 is bad in that it pretermits the consideration that to be in position to invoke the doctrine of self-defense the defendant must have been without fault in bringing on the fatal encounter.—McLeroy v. State, 120 Ala. 274. Besides being himself free from fault as above stated, the defendant to be entitled to acquittal on the ground of self-defense, must have found a necessity real or apparent for firing the fatal shot as a means of averting grievous bodily harm to himself, and also he must have retreated, if by retreat he could have avoided killing the deceased without materially increasing his own danger.—Evans v. State, 120 Ala. 269; Henson v. State, Ib. 336; Teague v. State, Ib. 309; Hendricks v. State, 122 Ala. 42; Naugher v. State, 105 Ala. 29; Howard v. State, 110 Ala. 92.

Charges 2, 3 and 4 are patently bad.

According to the majority opinion the judgment will be affirmed.

Sharpe and Dowdell, JJ., dissenting.